What If The Election Ties & The Supreme Court Is Split? A Constitutional Crisis Might Not Ensue

We’re less than 24 hours away from the election, and that means it’s our last chance to entertain long-shot notions like electoral ties, faithless electors, and other scenarios that could result in a legitimately disputed election. There's one particular question that looms large for anyone who lived through the 2000 election: What happens if there’s an electoral tie, and then the Supreme Court deadlocks? Would that plunge us into a Constitutional crisis?

Not necessarily, but before we answer that question, let’s look at how such a scenario might unfold.

First, we’d have to arrive at a situation wherein a single state’s electoral votes were in a position to decide the winner of the electoral college. Note that this is different from an electoral tie, wherein both candidates win 269 electoral votes with every state’s votes counted; in that case, the matter would be thrown to the House of Representatives.

In the situation we’re considering, both candidates would have to win less than 270 electoral votes when all but a single state’s votes were counted. Let’s suppose that state is Colorado. The map might look something like the map below. Here, neither candidate has yet reached 270 electoral votes, but Colorado’s nine electoral votes would push either candidate past the finish line.

But suppose the vote is extremely close in Colorado, and while recounts are conducted, those recounts are disputed. Lawsuits are filed, and the matter ends up before the Supreme Court. This is more or less what happened in Florida after the 2000 election.

But in 2000, there were nine justices on the court. Now, there are only eight. What would happen, then, if the court deadlocked 4-4 on our hypothetical Colorado recount case? This would be unprecedented — or “unpresidented,” if you will — but it would not necessarily result in the end of America as we know it. The outcome would largely depend on the nature of the lawsuits that had been filed on behalf of Team Donald Trump and Team Hillary Clinton.

What the Supreme Court did in 2000, specifically, was reverse a ruling from the Florida Supreme Court that would have allowed for another recount of the state’s ballots. By doing this, SCOTUS foreclosed the possibility of Al Gore overtaking George W. Bush’s vote count in the state, and in effect, handed the presidency to Bush.

But when the Supreme Court ties, the earlier ruling on the same case from the next-highest court stands. And so, in our hypothetical situation, the outcome of the election would essentially be in the lower court’s hands, not the Supreme Court. And because the Supreme Court only hears appeals from lower courts, there would be another ruling to fall back on.

Of course, the entire notion of a court deciding the outcome of a contested election would be incredibly divisive on its own, regardless of which court did it. Still, we can rest assured knowing that the vacant Supreme Court seat will not, on its own, result in a Constitutional crisis.